CITATION: Unoh v. Agboola, 2023 ONSC 5751
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Emma Samuda Unoh, Applicant
AND:
Ayodele Mobolaji Agboola, Respondent
BEFORE: The Honourable Madam Justice L. E. Standryk
COUNSEL: Lawrence Liquornik, as counsel for the Applicant
Self-represented Respondent
HEARD: August 15 and 23, 2023
DECISION ON MOTION FOR SECURITY FOR COSTS AND CROSS-MOTIONS
Overview
1Ayodele Mobolaji Agboola (the “father”) and Emma Unoh (the “mother”) are parents to Zoe Joy Agboola born October 1, 2014 (the “Child").
2A trial before Justice Turnbull in the Ontario Superior Court of Justice took place over a period of 14 days in May 2019. Oral reasons for judgment were provided on June 27, 2019, an amended judgment on June 28, 2019 (collectively the “Final Order”), and a costs decision on September 6, 2019 (the “Costs Order”).
3The Final Order directed that the mother have sole decision-making responsibility and primary residence of the Child. Parenting time was granted to the father. The regular parenting schedule requires the father to travel to St. Catharines on thefirst and third weekends of every month. In addition to the regular parenting schedule, the father is to enjoy additional holiday time and two non-consecutive weeks of summer vacation time with the Child each year. One week of the two-week summer vacation time may take place in Colorado or wherever else the father is residing in Canada or the United States. The Final Order also dealt with the issue of child support.
4The father appealed the Final Order and the Costs Order. The appeal is scheduled to be heard by the Divisional Court on October 30, 2023.
5On December 19, 2022, the father filed a contempt motion with the Superior Court of Justice, St. Catharines. On March 10, 2023, the father filed a motion to change the Final Order in the Superior Court of Justice, St. Catharines.
6On June 21, 2023, the mother filed a motion for security for costs in the amount of $25,000 in respect of the Divisional Court file 35/19. She has moved in this file for an order for security for costs in respect of the father’s contempt motion in the amount of $15,000 and in respect of the motion to change in the amount of either $50,000 (without a trial) or $100,000 (with a trial).
7In addition to the request for security for costs, the mother requests an order striking out paragraphs 21 and 22 of the father’s contempt motion and an order staying the father’s motion to change until final disposition of the Divisional Court appeal and until he pays any costs which might arise from the appeal should he be unsuccessful.
8In response to the mother’s motion for security for costs, the father has filed two cross-motions dated May 9, 2023 and May 24, 2023.
9The father requests the following relief:
a. May 9, 2023 notice of motion
i. An order denying the mother’s motion; sanctioning the mother for lying to the court; desist from making false, inflammatory and histrionic statements in affidavits filed with the court concerning the father; costs as well as travel costs of the father; an order accelerating the hearing of his contempt motion.
b. May 24, 2023 notice of motion
i. An order denying the mother’s motion; a written apology from the mother for her false and exceedingly inflammatory statements in her materials as filed; removal of the mother’s counsel, Mr. Liquornik; costs plus travel costs of the father.
10The motions for security for costs in the Divisional Court file 35/19 and the Superior Court of Justice, St. Catharines file 353/16 and the father’s cross-motions were heard by me on August 15 and 23, 2023.
11My decision on the Divisional Court motion for security for costs was released on September 14, 2023.
12On August 23, 2023, the second day of the hearing, the father, on a without prejudice basis, abandoned his request to remove Mr. Liquornik as counsel.
13For the reasons that follow:
a. Security for costs in respect of the contempt motion are ordered in the amount of $7,500;
b. Security for costs in respect of the motion to change are ordered in the amount of $20,000;
c. The mother’s request for an order striking out paragraphs 21 and 22 of the father’s contempt motion is dismissed in light of the father’s agreement to withdraw his request for relief that Mr. Liquornik be removed as counsel of record;
d. The father’s motion to change is stayed pending final disposition of the Divisional Court appeal;
e. The mother’s request to stay the father’s motion to change until satisfaction of any costs awards is dismissed; and
f. The father’s cross-motions are dismissed; however, the mother and her counsel are reminded of their obligations to promote the primary objectives of the Family Law Rules.
Background and the Trial Judge’s Findings
14The parties were married in 2011. The Child was born in the United States of America. The parties resided in St. Catharines, Ontario for a period before moving to Colorado to attend Charis Bible College in November 2013. The parties divorced in Colorado on June 16, 2017. All property issues arising from the dissolution of the marriage were resolved in Colorado.
15The litigation in Ontario began in 2016 when the father filed an application under the Hague Convention seeking the return of the Child from Ontario to Colorado. On October 31, 2016, Justice Scott dismissed the application finding that, while the Child was wrongly retained in Ontario by the mother, the father had acquiesced in the retention of the Child in Ontario by the mother. Justice Scott ordered further that the mother’s application under the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended (the “CLRA”), filed June 3, 2016 in St. Catharines could proceed.
16On December 8, 2016, the father brought a motion to stay the mother’s application which was dismissed, and costs were ordered in the amount of $750.
17On June 8, 2017, the father appealed the decision of Justice Scott to the Divisional Court. That appeal was dismissed with costs. The father sought leave to appeal the Divisional Court decision to the Court of Appeal. Leave was refused.
18The 14-day trial began May 13, 2019 before Justice Turnbull. The Final Order was made pursuant to provincial legislation, namely the CLRA, because the divorce had been granted and all property issues resolved in Colorado.
19The father filed his notice of appeal with the Divisional Court on July 25, 2019.
20At the conclusion of the trial, on September 6, 2019, the court ordered costs against the father in the amount of $54,594.82.
21The Costs Order is stayed by the father’s appeal to the Divisional Court and has not been paid to date.
22On December 19, 2022, the father filed a contempt motion with the Superior Court of Justice, St. Catharines. On March 10, 2023, the father filed a motion to change the Final Order in the Superior Court of Justice, St. Catharines.
23On June 21, 2023, the mother filed a motion for security for costs in both the Divisional Court and Superior Court of Justice, St. Catharines requesting $25,000 security in respect of the appeal, $15,000 with respect to the contempt motion and either $50,000 (without a trial) or $100,000 (with a trial) regarding the motion to change.
24On April 21, 2023, Justice Sheard as a judge of the Divisional Court ordered that the motion for security for costs made by the mother in the Divisional Court file 35/19 was to be heard in St. Catharines together with the mother’s motion for security for costs filed in the Superior Court of Justice, St. Catharines file 353/16. The mother was to deliver her responding materials to the appeal by the earlier of two weeks from the date on which the motion for security for costs was determined or September 29, 2023.
Motion to Change and Contempt Motion
25The father’s motion to change requests several variations and additions to the terms of the Final Order which include, among other things:
a. A requirement that the mother purchase a mobile phone for the Child for the purpose of communication with the father;
b. Responsibility by the mother for all travel expenses associated with the exercise of parenting time with the Child by the father;
c. Summer vacation parenting time for the father to include all but one week of the Child’s summer break;
d. Removal of the police enforcement clause against the father while maintaining enforcement against the mother;
e. An order that Family and Childrens Services of Niagara release in perpetuity to the father all reports regarding the Child; and
f. Removal of the requirement for the father to exercise regularly scheduled parenting time with the Child in St. Catharines.
26In his contempt motion, the father summarizes the mother’s alleged contempt of the Final Order as follows:
a. The mother refused to bring the Child to the United States for summer visitation in 2020, 2021 and 2022;
b. In respect of parenting time in Canada, the mother:
i. refused to produce the Child for various scheduled parenting time as particularized in the father’s affidavit dated November 30, 2022;
ii. refused to let the Child call the father or pick up the father’s calls and has not allowed the Child to communicate with her father electronically for a period exceeding two years;
iii. refused to make up missed calls and/or parenting time;
iv. failed to inform the father that the Child was enrolled in online school;
v. failed to inform the father regarding the Child’s safety protocols and care during the COVID-19 pandemic;
vi. failed to inform the father that she obtained a live-in nanny for the Child;
vii. refused to tell the father that the Child was enrolled for psychological counselling until the counsellor told the mother to do so and further failed to inform the father that counselling had been discontinued; and
viii. attended the father’s lodging without written notice on November 11, 2020 and June 6, 2021;
c. Mr. Liquornik directed and/or orchestrated the mother to disobey the Final Order regarding access visits and threatened along with the mother to continue to contemn the parenting provisions of the Final Order; and
d. The mother, her friends, and her agents have engaged in vile and obstructive behaviour to impede the Child’s relationship with her father and negatively affect her.
Materials Considered and Reviewed
27I have reviewed and considered the following:
a. Mother’s Materials
i. The notice of return of motion dated June 21, 2023;
ii. The supporting affidavit of the mother sworn April 13, 2023; and
iii. The mother’s factum dated June 28, 2023.
b. Father’s Materials
i. The notice of motion dated May 9, 2023;
ii. The notice of motion dated May 24, 2023;
iii. The affidavits of the father dated April 27, 2023 and May 23, 2023; and
iv. The father’s factum uploaded to CaseLines August 14, 2023.
28I have reviewed all orders and endorsements previously made in this matter.
29I have reviewed the father’s notice of contempt motion dated December 10, 2022 and the father’s motion to change issued March 10, 2023 and all supporting materials filed.
30I have also referred to the facta filed by each party. Both facta were comprehensive and referred to more than 50 cases, all of which were reviewed and carefully considered.
Guiding Principles – Security for Costs
31Rule 24(13) of the Family Law Rules, O. Reg. 114/99 (the “Rules”), provides the authority for requiring security for costs and reads:
A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:
A party habitually resides outside Ontario.
A party has an order against the other party for costs that remains unpaid, in the same case or another case.
A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.
A statute entitles the party to security for costs.
32Rule 23(14) provides that a judge shall determine the amount of the security, its form, and the method of giving it.
33Rule 23(15) provides that if security is ordered, until such time as it has been given, the party against whom the order is made is not able to take any further step in the case (except to appeal) unless a judge orders otherwise.
34Rule 23(16) permits the court to dismiss a party’s case or strike that party’s pleading if the security is not provided, presumably as a result of the other party bringing a motion requesting the same.
35The mother is arguing points 1, 2, and 4 of rule 24(13) in this motion.
36In Izyuk v. Bilousov, 2015 ONSC 3684, 62 R.F.L. (7th) 131, at paragraph 40, Pazaratz J. set out the following steps for courts to follow when determining whether security should be ordered:
40The court must apply the following analysis:
a. The initial onus is on the party seeking security for costs to show that the other party falls within one of the enumerated grounds.
b. If the onus is met, the court has discretion to grant or refuse an order for security.
c. If the court orders security, it has wide discretion as to the quantum and means of payment of the order. Clark v Clark 2014 ONCA 175
d. The order must be “just” and be based on one or more of the factors listed in subrule 24(13). Hodgins v Buddhu [2013] O.J. No. 1261 (OCJ).
37Justice Pazaratz commented further at paragraphs 41 and 42:
41A common theme in the case law suggests security for costs in custody and access cases should only be ordered in exceptional circumstances. Kaiser v. Wein 2014 ONSC 752; Daviau v. Husid 2014 ONSC 3188; Parham v. Jiang 2014 ONSC 3293. The traditional rationale:
a. The best interests of children are always paramount.
b. Courts should not allow the outcome in children’s lives to be determined by a party’s financial resources, or inability to post security for costs.
c. Despite any deficiency or non-compliance by a parent, courts are better able to address sensitive children’s issues if both parties participate in the process and provide valuable information. Kovachis v Kovachis 2013 ONCA 663; Purcaru v Purcaru 2010 ONCA 92.
d. These concerns may be particularly applicable where custody or access are being determined in the first instance (as opposed to a motion to change, where the issues may be narrower, and where the moving party has the threshold onus to establish a material change in circumstances).
42But high conflict parenting disputes are often the most time consuming, financially draining, and emotionally damaging cases we deal with in family court. Quite often the best gift we can give children is a break from the family siege mentality and perpetual stoking of conflict which accompanies endless litigation.
Guiding Principles – Order to Stay
38Rule 2 specifies that the primary objective of the Rules is to enable the court to deal with cases justly. In dealing with a case justly, the court is required to:
a. Ensure that the procedure is fair to all parties;
b. Save time and expense;
c. Deal with a case in ways that are appropriate to its importance and complexity; and
d. Give appropriate court resources to the case while taking account of the need to give resources to other cases.
39The Rules must be applied in a way that promotes the primary objective which involves active case management by the court. Parties and their lawyers are required to assist the court in promoting the primary objective.
40Section 106 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended (the “CJA”), allows a court to stay a proceeding on such terms as are considered just. The court’s mandate under rule 2(5) to take active management of cases will occasionally require consideration of the courts power to stay proceedings under section 106 of the CJA.
Motion to Stay
Position of the Parties
Mother’s Position
41Relying on Hawkins v. Schlosser, 2013 ONSC 2120, at paragraph 17 and Lapier v. Roebuck, 2017 ONSC 1640, at paragraph 49, the mother submits that the father’s motion to change cannot proceed where there is an outstanding appeal.
42The mother draws the court’s attention to rule 2 and submits that the court is required to promote the objective of the Rules by, among other actions, setting timetables or otherwise controlling the progress of the case. For these reasons, the mother requests an order preventing the father from proceeding with his motion to change until there is a final disposition of his appeal and until he pays any costs which might arise from his appeal should he be unsuccessful.
Father’s Position
43The court did not receive any substantive submission from the father on this issue. The father focused the content of his factum and submissions on the issue of security for costs and the substance of his cross-motions.
Analysis
44If the father’s appeal is successful, the motion to change may become superfluous. To allow the motion to change to proceed while the appeal is outstanding is inconsistent with the primary objective of the Rules.
45I agree with the authorities referenced by mother; the motion to change the Final Order cannot proceed while the appeal is outstanding.
46The mother also requests that the motion to change be stayed until such time as the father has satisfied the Costs Order and any order of costs granted by the Divisional Court should he be unsuccessful on his appeal.
47I am not prepared to grant an order to stay the motion pending payment of the Costs Order or any order for costs against the father on the appeal at this time. The father has satisfied all prior cost orders made against him. The only reason that the father has not satisfied the order of costs from the trial is because that order is under appeal and subject to an automatic stay. There is no evidence before the court that the father will not satisfy any outstanding costs award after the automatic stay is lifted.
48In these circumstances, I find it more appropriate to deal with such a request, if necessary, following a determination of the appeal.
49If the father fails to satisfy the Costs Order or any other order as to costs following determination of the appeal, the mother may request an order from the court pursuant to rule 1(8) that the father not be permitted to take any further step in the case pending compliance with outstanding orders.
Security for Costs
Position of the Parties
Mother’s Position
50The mother submits that the father is ordinarily resident outside Ontario and has no assets in the province against which she can enforce a costs award. This artificially insulates him from the risk of a costs award.
51The father is an unrelenting litigant who has engaged in a multiplicity of proceedings and nuisance claims designed to greatly increase the mother’s costs. He is not focused on the best interests of his little girl, but on causing expense, and emotional and financial injury to the mother.
52With respect to the father’s motion to change:
a. The father has pursued a motion to change before the hearing of his appeal of the Final Order. In both his appeal and the motion to change, the father seeks to change the Final Order;
b. The father’s materials fail to disclose a material change in circumstances required to change the Final Order. The focus of the father’s materials appears to be directed at relitigating the Final Order to ensure maximum convenience for the father; and
c. The father requests 36 distinct changes to the Final Order. Many of the changes have nothing to do with any alleged non-compliance by the mother or a material change in circumstances.
53With respect to the father’s contempt motion:
a. The father’s notice of contempt motion alleges no less than 21 breaches of the Final Order by the mother, as well as two grounds of contempt against the mother’s counsel, all of which the mother denies;
b. The father’s contempt motion raises allegations going as far back as 2020;
c. The mother denies that she is in contempt of the Final Order and asserts that parenting time in the United States was impacted by the COVID-19 pandemic border closures rather than the mother’s refusal to comply with the Final Order. She has kept the father informed about the Child; and
d. The father alleges that the mother has emotionally abused the Child but fails to particularize his concerns and has not pursued a complaint with Family and Children’s Services. He requests an order that the mother self report her alleged abuse to the College of Physicians and Surgeons of Ontario and submit herself to their disciplinary process. He requests that the mother apologize to the Child, and that the apology be drafted by a psychologist and submitted to the court. The father seeks an order of punitive damages against the mother. In each respect, the father fails to provide the court with the legislative or common law basis to make the orders requested.
54The motion to change and contempt motion are a nuisance or a waste of time because they attempt to relitigate the 2019 trial and are not focused on the Child’s best interests.
55The Costs Order is unpaid and has been outstanding for a period of four years, and the father has strategically delayed setting the appeal down for a hearing to avoid payment.
Father’s Position
56A summary of the father’s position includes:
a. The mother delayed in her motion to request security for costs;
b. He is not properly characterized as a vexatious, irresponsible litigant who has advanced frivolous or nuisance claims. Rather, he is a litigant who has used the court process and procedure properly. This has been reinforced by the comments of Turnbull J. in the Final Order;
c. There was no delay in pursuing his appeal with the Divisional Court. A hearing date was set for June 2020. Due to the COVID-19 pandemic, the Divisional Court suspended its activities. The father contacted the Divisional Court in 2021 after the courts re-opened, however, he received no response. He followed up with the Divisional Court and it was acknowledged that his email was found in the junk mail folder.
d. Both the motion to change and the contempt motion have merit and he has particularized his allegations, many of which remain unaddressed by the mother particularly as they relate to her contemptuous behaviour.
e. There are no outstanding or unpaid costs awards against him. The Costs Order is automatically stayed by the filing of his appeal.
Analysis
57It is conceded that the father resides outside Ontario. I am satisfied that the mother satisfied the first part of the analysis under rule 24(13)(1) and therefore the first part of the Izyuk test.
58With respect to rule 24(13)(2), it is conceded that the Costs Order remains outstanding. The Costs Order was automatically stayed by the father’s filing of his notice of appeal. The sittings of the Divisional Court were temporarily paused due to the pandemic. The father followed up with the Divisional Court at different times in 2020 and again in 2021. In May 2021, the Divisional Court apologized for the delay in responding to the father’s inquiry and acknowledged that his email had been discovered in the court’s junk mail folder.
59In circumstances such as these, I am not persuaded that the father is in breach of the Costs Order or that he has intentionally and strategically delayed the appeal. However, the rule does not require that I find an award of costs remains outstanding by reason of a party’s refusal to comply with the order. It is sufficient that I find that the Costs Order remains outstanding, which is acknowledged by the parties.
60Rule 24(13)(4) requires the mother to prove that there is good reason to believe that the father’s case (the motion to change and/or contempt motion) is a waste of time or a nuisance and that the father does not have enough assets in Ontario to pay costs.
61In the case of Wreggbo v. Vinton, 2013 ONCJ 250, Justice Katarynych stated at paragraph 11:
[T]he subrule allows either a showing of good reason to believe that there is either nuisance afoot or a wasting of the court’s time. As a matter of common sense, a nuisance claim is one so devoid of merit that it is a waste of the court’s time. It wholly undercuts the primary objective of the Rules to allow a “nuisance claim” that is by its nature a waste of time, to go forward to trial with a security for costs order “hobbling” the trial court, as Superior Court Justice Quinn characterized the dilemma in the Stefureak case. See Stefureak v. Chambers, 2005 ONSC 7890. [Emphasis omitted.]
62The father’s contempt motion dated December 10, 2022 was filed with an affidavit dated November 30, 2022. The father also relies on the November 30, 2022 affidavit to support his motion to change. In reviewing this material, I am required to ask whether there is good reason to believe that the father’s motions are a nuisance or a waste of time. This does not require a detailed analysis akin to that at a trial but rather a general review of the evidentiary record. In this case, that record does not include responding materials filed by the mother on either of the father’s motions.
63The father has outlined particulars of his allegations of contempt including the various dates and the provisions of the Final Order allegedly breached by the mother. Based on the detail outlined in his motion materials, I am not persuaded that the father’s contempt motion is either a nuisance or a waste of time.
64On a motion to change a final order under the CLRA, the father is required to prove a material change in circumstances. At first glance, it is unclear what the father says is the material change.
65It can be difficult for a self-represented litigant to fully understand and navigate the rules of the court and rules of evidence. It can be difficult to know how best to organize materials and present evidence necessary to prove one’s case.
66A closer review of the father’s materials suggests that the father relies on the various acts of alleged contempt as a material change in circumstances in support of his motion to change.
67I cannot conclude on the evidence before me, at this stage of the proceeding, that the motion to change is either a nuisance or a waste of time.
68The mother has established at least two factors set out in rule 24(13), being that the father is not resident in Ontario and a costs award remains outstanding. It is on this basis that the order sought should issue.
69However, the fact that the father is not resident in Ontario does not give the mother the automatic right to an order for security. Even where a party has satisfied one of the criteria set out in rule 24(13), an order for security for costs is not intended to prevent the merits of any case from being heard: See Bragg v. Bruyere, 2007 ONCJ 515, 45 R.F.L. (6th) 226, at paragraph 5.
70This has been a very expensive, time-consuming, and disruptive case for both parties. Since 2016, the parties have been involved in a steady stream of appearances before the courts. The Child has been the center of these proceedings for the majority of her life. One can only imagine the impact that these proceedings have had on the Child.
71As for the justness of the order for security for costs, I have considered all the circumstances of this case as well as the justness of the order holistically. The circumstances that I have considered include:
a. The father is not resident in Ontario and has no assets in Ontario. The rationale for the inclusion of non-resident status is in part that they are artificially insulated from the risk of a costs award. See: Wall v. Horn Abbot Ltd.(1999), 1999 NSCA 7240, 176 N.S.R. (2d) 96 (C.A.), at paragraph 54;
b. There is no evidence from the father that an order for security will prevent him from advancing his motions. The father failed to provide any evidence of his financial circumstance for me to consider in the context of whether such an order would be just;
c. While the father has complied with all court orders as to costs, there is an outstanding sizable award from trial as stayed by his appeal and the costs of litigation continue to mount;
d. The number of issues raised by the father in the motion to change and contempt motion are considerable. His materials are voluminous. The mother will be required to file comprehensive and detailed responding materials at great expense;
e. There is an outstanding appeal of the Final Order. If the father is successful on his appeal, the motion to change may become unnecessary;
f. There continues to be a great deal of animosity between the father, the mother, and the mother’s counsel, Mr. Liquornik. Much of the animosity is caused by the inflammatory language used by the parties and notably the mother and her counsel. This approach to litigation gives way to an affidavit war and continued conflict at great expense;
g. The father stated during his submissions to the court that things were going well between he and the mother prior to counsel’s involvement. Once counsel told him to provide his address or he would not see his daughter, the father took this as a “call to war.” Unfortunately for both parties, but most importantly the Child, the animosity has not waned;
h. The father travels from Colorado to Ontario on the first and third weekends of each month to exercise parenting time with the Child at considerable expense; and
i. The father has recently been required to post security in his appeal in the sum of $15,000.
72As to the father’s concern of delay, I am not persuaded that the mother delayed in her motion for security for costs. Once it was clear that the father intended to proceed with his appeal, the mother served and filed her motions within a reasonable period of time.
73In these circumstances, I find it appropriate to grant an order for security for costs.
74The mother has requested security for costs of the motion to change in the sum of either $50,000 or $100,000 and for the contempt motion in the sum of $15,000. The amounts requested by the mother represent full indemnification. I do not find this request reasonable.
75Having regard to the circumstances of this case, I find it is appropriate that the father post security for costs of the contempt motion in the sum of $7,500.
76In the event that the father is unsuccessful in his appeal, and should the father wish to proceed with his motion to change, before taking any further step to advance the motion, he shall post security for costs in the sum of $20,000.
Father’s Cross-motions
77The father requests the following relief:
a. sanctioning the mother for lying to the court;
b. an order that the mother desist from making false, inflammatory and histrionic statements in affidavits filed with the court concerning that father;
c. costs as well as travel costs of the father;
d. an order accelerating the hearing of his contempt motion; and
e. a written apology from the mother for her false and exceedingly inflammatory statements in her materials as filed.
78The father did not actively pursue the relief set out in paragraph 73 (c) or (d) above.
79With respect to the relief in paragraph 73 (a) above, the father submits that the mother lied to the court on various occasions and highlighted the following two occasions: March 6, 2023 and in her affidavit of April 13, 2023.
80On March 6, 2023, the father’s contempt motion was scheduled to be heard by Donohue J. Mr. Z. Liquornik appeared on behalf of Mr. L. Liquornik to advise the mother had just retained counsel to represent her in the matter and that she was not personally served with the father’s materials.
81The father provided an affidavit by a process server showing the court that hard copies of the father’s notice of contempt motion along with other materials had been personally served on December 19, 2022 at the mother’s residence.
82The father further submits that the mother has misrepresented to the court that her affidavit sworn April 13, 2023 was sworn in the City of Vaughan. The father submits that is not reasonable to conclude that the mother travelled from St. Catharines to Vaughan to have an affidavit sworn and for this reason she must be lying.
83The mother denies that she has mislead the court as alleged. The mother submits that the father’s cross-motions dated May 9, 2023 and May 24, 2023 were not authorized by Justice Donohue’s endorsement of March 6, 2023, Justice Sheard’s endorsement of April 21, 2023, nor Justice MacPherson’s endorsement of June 2, 2023. The mother submits that the cross-motions are another example of the nuisance litigation by the father which increases the mother’s costs.
84The mother submits that the father’s April 27, 2023 affidavit is an attempt to relitigate the adjournment of his contempt motion on March 6, 2023. She asserts that both cross-motions request that the mother’s motion for security for costs be denied and that this request does not require a cross-motion; the father could have simply opposed the mother’s motion.
85While the father provided proof that his materials were served personally on the mother, on the evidence before me, I am unable to conclude that the representation to the court by Mr. L. Liquornik’s agent was an intentional misrepresentation or fabrication.
86The father has failed to provide any evidence to support his allegations in respect of his concerns with the April 13, 2023 affidavit. In the absence of any such evidence, his concern is pure speculation.
87With respect to the father’s request for relief set out in paragraph 73 (b) and (e) above, the father submits that throughout the legal proceedings the mother has made inflammatory, abusive, and irresponsible comments about him. For example:
a. That the father does not care about the welfare of his daughter; and
b. That the father is a vexatious litigant.
88The mother denies the father’s allegations.
89The mother submits that the court does not have jurisdiction to grant the relief requested by the father and further that he has failed to reference a source for the court’s jurisdiction to make such an order.
90I asked both parties to produce jurisprudence for my consideration. Neither party was able to do so to support their positions. As a result, I conducted my own research on the issue which has informed my decision.
91The court’s authority to order an apology is an equitable remedy. Section 96 of the Courts of Justice Act provides:
Rules of law and equity
96 (1) Courts shall administer concurrently all rules of equity and the common law.
Rules of equity to prevail
(2) Where a rule of equity conflicts with a rule of the common law, the rule of equity prevails.
Jurisdiction for equitable relief
(3) Only the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may grant equitable relief, unless otherwise provided.
92While it is clear that I have jurisdiction to grant equitable relief, I was unable to find a case where a court has, in the context of a family law proceeding, ordered that one party provide a written apology to the other. That is likely because in high-conflict family matters such as this, forcing one party to apologize in the face of denial of wrongdoing simply produces an insincere expression of regret. A hollow apology serves no legitimate purpose. For this reason, I decline to grant the order requested.
93While I have declined to grant the father’s request for a written apology, it is necessary to address the father’s concerns of the mother’s use of inflammatory language in this proceeding.
94In his costs endorsement dated September 6, 2019, Turnbull J. referred to extracts from his oral reasons for judgment on the trial as follows:
Dr. Unoh’s constant references to the respondent as a liar simply exacerbated the situation. … Her language was often rude, sarcastic and insulting, which she agreed to during her testimony. … She seemed not to be sensitive to the anger and frustration her former husband was experiencing at the sudden loss of the daily presence of his little girl. She was frequently dismissive of concerns raised by him and a good number of her communications were verbally abusive. I find on the evidence that she clearly had a very bad temper when dealing with the respondent and her tongue was as sharp and cutting as a sword.
She further aggravated the situation with her behaviour.
95The mother has continued this pattern of rude, sarcastic, and insulting behaviour as evidenced throughout the materials that she has filed on these motions and through her counsel’s submissions made on her behalf. For example:
a. The father has viciously litigated with the mother and his motions are not focused on the best interests of the Child, which leaves one with the impression that he has dedicated himself to punishing the mother by way of relentless litigation;
b. The father engages in multiplicity of proceedings and nuisance claims, designed to harass;
c. The father is an unrelenting litigant that is out of control and needs to be reigned in with a significant order for security for costs;
d. The father is not focused on his little girl but on causing expenses and emotional and financial injury to the mother; and
e. The father has simply chosen to conveniently ignore the order for costs.
96The Rules recognize that resolution of family disputes is the preferred outcome in any proceeding. Inflammatory affidavits are often commonplace in high-conflict family litigation. There is a pattern of inflammatory affidavits filed in this proceeding. They tend to create upset, escalate tensions, heighten conflict, and aggravate the potential for resolution. This type of conduct can irreparably fracture a family.
97Legal proceedings between the parties started in 2016 when the Child was approximately two years of age. She is now eight years old and has spent the majority of her life as the subject of litigation between her parents. If the parties wish to salvage any potential for resolution and the opportunity of future cordial co-existence, the disrespectful behaviour must stop, and they must set the use of inflammatory language aside.
Conclusion
98The father’s motion to change is stayed until after a determination of the father’s appeal to the Divisional Court.
99The father is ordered to pay into court the amount of $7,500 as security for costs of the contempt motion.
100In the event the father is unsuccessful in his appeal, and should the father wish to proceed with his motion to change, before taking any further step to advance the motion, he shall pay into court the sum of $20,000 as security for costs of the motion to change.
101The father’s cross-motions are dismissed.
Costs
102The parties are encouraged to resolve the issue of costs of the motion for security for costs in the Divisional Court file and the motion for security for costs and cross-motions in the Superior Court of Justice, St. Catharines file themselves.
103If they are unable to do so, they may make written submissions according to the following timetable:
a. The applicant shall serve and file her written submissions, if any, by no later than November 3, 2023;
b. The respondent shall serve and file his responding submissions, if any, by no later than November 22, 2023; and
c. The applicant shall serve and file her reply submissions, if any, by no later than November 29, 2023.
104Written submissions shall consist of not more than three pages double-spaced and in 12-point font, and margins set at 2.54 cm, together with excerpts of any legal authorities referenced, a bill of costs, and any offers to settle.
105All submissions are to be filed with the court, with a copy also provided to the judicial assistants by email to: St.Catharines.SCJJA@ontario.ca.
106If no submissions or written consent to a reasonable extension are received by the court by November 3, 2023 the matter of costs will be deemed to have been settled in both the Divisional Court file 35/19 and the Superior Court file 353/16.
L. E. Standryk, J.
Date Released: October 18, 2023